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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California, for the County of Los Angeles, Respondent. Nathan Dwayne WHEATON, and Phillip Lewis Young, Real Parties in Interest.

No. B096321.

Decided: December 11, 1995

Gil Garcetti, District Attorney, Patrick D. Moran and Brentford J. Ferreira, Deputies District Attorney, for Petitioner. No appearance by Respondent. Tom Stanley, Bruce Hoffman, Alternate Public Defender, Los Angeles, Patrick G. Thomason and Henry J. Hall, Deputy Public Defenders, for Real Parties in Interest.

The People seek an alternative writ of mandate/prohibition directing the trial court to protect the identity of witnesses to the murder of Thomas Ray allegedly committed by real parties in interest Nathan Dwayne Wheaton and Phillip Young in which both Wheaton and Young personally used a firearm.  (Pen.Code, §§ 187, 12022.5, subd. (a).) 1

The People contend:  “[I]. Sections 1054, et seq., allow a court to withhold the name and address of a witness based upon a sufficient showing of danger to the witness.  [II.] The right of confrontation does not require that the witnesses' names be disclosed.  [III.] Real parties do not have an absolute right to face to face confrontation.”  (Capitalization omitted.)

Real parties in interest allegedly killed Ray for agreeing to testify against a fellow gang member.   The killing took place at a party attended by numerous associates.   The People provided redacted discovery to Wheaton and Young prior to trial and obtained an order which permitted the People to delay identifying the witnesses to Wheaton and Young until 24 hours before trial commenced.   The People then sought to prevent Wheaton and Young permanently from discovering the identity of the endangered witnesses.   The People suggested Wheaton and Young be removed from the courtroom during the testimony of the endangered witnesses and placed in a separate room where they could hear the voice-altered testimony of the witnesses and communicate with defense counsel via telephone.

The People seek writ review of the denial of that request.

We conclude the trial court properly refused to employ the procedure suggested by the People because it violates the confrontation clause of the Sixth Amendment.   However, under the circumstances presented here, the trial court may delay disclosure of the identity of the endangered witnesses until such time as each individual witness takes the stand at trial to testify.


1. The grand jury proceedings.

The evidence adduced at the grand jury proceedings indicated that on October 28, 1994, the victim Ray attended a party at 1744 West 82nd Street in Los Angeles.   Witness No. 1 recalled there were a “couple of hoods there” including the Eight–Trey Gangsters.   At about 11:25 p.m. Wheaton, an Eight–Trey gangster, entered the party and started “hitting up other eight-trey gangsters and asking them where they're from and he knows there's nothing but eight-trey gangsters up in there.   He knows.   He knows.  [¶] If there's a party on 82nd off Normandie, he knows where everybody from.”   Witness No. 1 went to the door when he heard a commotion in the back yard and saw Wheaton with a gun.   Wheaton told Ray to lie down.   Wheaton was attempting to “dome” Ray, i.e., shoot him in the head when he lay down.

As Ray started to comply, he reached up, grabbed the gun and wrestled with Wheaton.   The gun went off during the struggle and someone ran from the scene and stated he had been shot.   Young walked up behind Ray, pistol whipped him in the back of the head with another gun and then shot Ray in the back at close range while Ray continued to struggle over Wheaton's gun.2  As Witness No. 1 ran from the scene, he heard numerous other shots fired.   It sounded like the shots were being fired inside the house.

The medical examiner found Ray died as a result of a gunshot wound to the back which had been inflicted at close range as evidenced by soot found inside the wound site.

Witness No. 1 testified that on the day after the shooting he heard Wheaton had said they had “paperwork” on Ray, meaning that Wheaton was aware Ray had signed a police statement as a witness.   Witness No. 1 also testified, inconsistently with the foregoing, he had heard Wheaton say this sometime before the fight started and that Wheaton said Ray had been killed because he was from “back east.”

At the time of the grand jury proceedings, Witness No. 1 was in custody for an outstanding warrant.   However, the People had promised Witness No. 1 that when he went to court the following day, a detective would advise the trial court Witness No. 1 had cooperated in the grand jury proceedings.   However, no disposition had been promised in Witness No. 1's pending case.

Witness No. 1 admitted Ray and Wheaton previously had been involved in a separate dispute which had taken place “a long time” ago.

Witness No. 2 also attended the party.   Witness No. 2 saw Ray run up to an individual and say, “ ‘Cuz, don't—tell them don't shoot me.   Don't let them shoot me.’ ”   Wheaton pushed the other individual out of the way and produced a gun.   When Witness No. 2 left the party, Ray and Wheaton were struggling.   Another individual attempted to break up the fight and was shot in the hand.   When Witness No. 2, returned there were numerous bullet holes in the house.

Los Angeles police detective Dan Meyes found numerous fresh bullet strikes on the metal security door of the residence and on the stucco.

2. Discovery proceedings.

The People sought and obtained an ex parte order redacting the names of the witnesses from the Grand Jury transcript.

At a hearing on a defense discovery motion on January 12, 1995, the prosecutor indicated the grand jury transcript and the murder book already had been redacted to remove the identities of the witnesses.3  The prosecutor indicated she intended to turn over all information available on the witnesses, including their criminal records, but the information would not include the names and addresses of the witnesses.

The trial court agreed to hold an in camera hearing the following day to consider the People's request.4

On January 30, 1995, the trial court again addressed the discovery issue.   At that point, the People indicated they would be satisfied with an order directing disclosure of the witnesses 24 hours before trial, citing People v. Lopez (1963) 60 Cal.2d 223, 246, 32 Cal.Rptr. 424, 384 P.2d 16.   The trial court granted that request as to three witnesses.

Wheaton sought writ review of the trial court's discovery order.   Both this court and the Supreme Court denied his petition.

Thereafter, on August 30, 1995, the People sought a protective order allowing the nondisclosure of the identities of the original three witnesses and one additional witness and an order protecting the identities of the four witnesses during trial.   The motion indicated the fourth witness would testify that when Young shot Ray in the back, Young said, “ ‘Fuck this bitch;  he snitched on Ope–Dog.’ ”   Witness No. 4 also would testify both Wheaton and Young shot at the house where the party was being held before leaving the area.

3. Trial court's ruling.

The trial court denied the motion for a protective order and directed the People to disclose the name of the witnesses 24 hours prior to the start of trial.   Thereafter, the People sought clarification of this order before a different judge.   The trial court which heard the renewed motion indicated it lacked jurisdiction to order permanent nondisclosure of the identities of the witnesses because another judge already had denied that request.   The trial court also denied the identity protecting devices as unconstitutional.


1. The People's contentions.

 The People contend section 1054 et seq., enacted upon the passage of Proposition 115 and effective June 6, 1990, permits a trial court to order the permanent nondisclosure of the name and address of an endangered witness.5  They ask this court to direct the trial court to fashion an order which places the defendants in a separate room outside the courtroom during the testimony of each endangered witness.   Inside this separate room, the defendants will be able to hear the voice-altered testimony of the endangered witnesses and communicate with defense counsel via telephone.   The People claim this procedure will allow the jury to observe the demeanor of the witnesses and allow the defendants to participate in cross-examination.

The People assert this is a strong case for permanent nondisclosure of the names and addresses of witnesses because the evidence showed Ray had been murdered because he had agreed in some fashion to testify against a gang member.   The People further claim Wheaton and Young fired numerous shots at the residence before leaving the party to intimidate other witnesses.   The People contend that if the defendants see the witnesses “or to even hear the natural voices of these witnesses, the witnesses will in all likelihood be killed․”   They further argue it would be impossible to relocate all of the individuals who would be placed in jeopardy by disclosure of the witnesses' identities.

2. The defendants' responses.

Young has filed a return and answer to the petition in which he contends:  the relief requested by the People should be denied based on laches;  the order refusing the request to screen the witnesses from the defendants constituted an order respecting the receipt of evidence in the trial court which is not subject to writ review (People v. Municipal Court (Ahnemann) (1974) 12 Cal.3d 658, 660, 117 Cal.Rptr. 20, 527 P.2d 372);  the People have failed to show any actual danger to the witnesses;  the People concede Ray was not killed because of his participation as a witness in any investigation;  and no case, not even those permitting a child abuse victim to testify via one-way closed circuit television, has permitted the permanent non-disclosure of the names of the sole percipient witnesses to murder.

Young points out Witness No. 1's testimony at the Grand Jury proceeding was filled with inconsistencies in that he stated there were numerous hoods present at the party but that everyone there was Eight–Trey, he gave conflicting accounts of the “paperwork” remark, and, in any event, the People concede Ray was not a witness in any ongoing investigation.   Further, Witness No. 1's testimony was contradicted by the autopsy report which noted no injury to the back of Ray's head.

Young further contends the trial court lacks inherent power to adopt novel criminal procedures such as those suggested by the People without express statutory authorization.  (Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 783–784, 208 Cal.Rptr. 273.)

Wheaton also has filed a return to the petition which asserts he is entitled to discover the identity of the percipient witnesses who will testify against him at trial even if there is a threat to the safety of the witnesses.   Further, the Sixth Amendment guarantees a face to face confrontation between accused and accuser which discloses the identity of the witness.

3. U.S. Supreme Court precedent.

The Supreme Court rejected a procedure whereby a screen is placed between the defendant and the child victim which blocked the defendant from the child's sight and allowed the accused to hear the child victim but see the victim only dimly.  (Coy v. Iowa (1988) 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857.)

However, it upheld testimony by closed circuit television by child witnesses based upon a finding of necessity.  (Maryland v. Craig (1990) 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666.)  Craig noted:  “We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.”  (Id., at p. 844, 110 S.Ct. at p. 3163.)  “That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with.  [O]ur precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”  (Id. at p. 850, 110 S.Ct. at p. 3166.)

Craig found the procedure employed in Maryland prevented the child from seeing the defendant when the child testified but “preserves all of the other elements of the confrontation right:  The child witness must be competent to testify and must testify under oath;  the defendant retains full opportunity for contemporaneous cross-examination;  and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.”  (Id. at p. 851, 110 S.Ct. at p. 3166.)

4. Resolution.

a. Discovery.

We conclude the procedure suggested by the People, whereby the witnesses testify anonymously outside the presence of the defendants, undermines the reliability of the testimony in the case.   We reach this result because it appears the endangered witnesses and the real parties were acquainted with each other before the crime occurred.   Allowing these witnesses to testify without revealing their identity to the real parties effectively would emasculate real parties' right to cross-examine on the issue of bias.

Nondisclosure of the identity of a witness is a simpler matter where the crime in question is witnessed by a stranger.   In such a case, the investigation of a witness' bias and motive to lie are relatively straightforward.   E.g., in Montez v. Superior Court (1992) 5 Cal.App.4th 763, 767–772, 7 Cal.Rptr.2d 76, this court permitted the nondisclosure of the names, addresses and telephone numbers of four witnesses who heard shots and saw the apparent murderers run from the crime scene.   In upholding this order, Montez relied heavily on the fact the veracity of the witnesses was not in issue.

Here, there may have been any number of prior encounters between the defendants and the endangered witnesses which arguably might give rise to a motive to testify falsely against the defendants.   Such motives cannot be ascertained by the defendants unless they know the identity of the accuser.

Accordingly, Wheaton and Young must at some point in the proceedings be made aware of the identity of the witnesses against them with whom they are acquainted.   However, in order to insulate the witnesses from the threat of harm for as long as possible, the trial court may permit nondisclosure of the identity of the witness until such time as the witness actually takes the witness stand at trial.

Thus, the trial court, consistent with the provisions of section 1054 et seq, properly directed the defendants to receive only redacted discovery prior to trial.   However, the substantial rights embodied in the confrontation clause preclude permanent nondisclosure in this case.   Withholding the identity of a witness until the witness testifies will prevent premature disclosure of the witnesses' identity in the event the trial of the case does not go forward, and satisfy the right of the accused to confront and cross-examination witnesses against them.

The redacted discovery provided to the defendants will permit defense counsel to prepare to cross-examination the witnesses on the underlying facts of the incident and the witnesses' prior felony convictions.   The only issue that will be left open until the time of the witnesses' testimony will be the possibility the witness is biased against the accused.   This issue will be brought into focus at the time the witnesses testify because the accused will know the witnesses on sight and at that point will be able to assist defense counsel in the cross-examination of these witnesses.6

 By delaying disclosure of the identity of the witnesses until such time as they testify, the risk of harm to the witnesses is reduced.   However, the prosecutor cannot reduce its witness relocation costs at the expense of the constitutional rights of the real parties in interest.  (See Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1406, 16 Cal.Rptr.2d 113.)

b. The People's reliance on federal authority is misplaced.

The People claim the procedure they suggest would not violate the confrontation clause and they have cited numerous federal cases in which the nondisclosure of witness information was upheld.   The People claim these cases support permanent nondisclosure of the identities of the witnesses in this case.   However, only a few of these cases involved the permanent nondisclosure of a witness' name, and none of the cases permits permanent nondisclosure of the names of witnesses and also deny face to face confrontation.   Further, in the cases where the names of the witnesses were not disclosed, the protected witnesses were not the crucial or primary witnesses against the accused.   (Siegfriedt v. Fair (1st Cir.1992) 982 F.2d 14, 17 [former testimony of a witness given under a pseudonym];  United States ex rel. Abbott v. Twomey (7th Cir.1972) 460 F.2d 400, 401–402 [informant who was not a principal or chief witness to drug transaction not required to reveal true identity, residence and place of business];  United States v. Palermo (7th Cir.1969) 410 F.2d 468, 472 [right of defendant to have witness's true name, address and place of employment is not absolute where personal safety of witness is at issue];  Clark v. Ricketts (9th Cir.1991) 958 F.2d 851, 854–855 [right of confrontation not violated where defendant not permitted to elicit name and address of prosecution's “John Doe” witness on cross-examination.   However, prior to trial the name and criminal record of the witness was disclosed];  United States v. Rangel (9th Cir.1976) 534 F.2d 147, 148 [trial court properly refused to require government informant to divulge true name, residence and phone number on witness stand];  United States v. Ellis (9th Cir.1972) 468 F.2d 638, 639 [defendant precluded from eliciting correct name, residence and occupation of agent-purchaser of drugs who was of “marginal significance”];  United States v. Cosby (9th Cir.1974) 500 F.2d 405, 407 [address of informant withheld];  United States v. Varella (11th Cir.1982) 692 F.2d 1352, 1355–1356 [nondisclosure of identity of informants who were not “integral participants” in underlying transaction].)

Accordingly, these cases are distinguishable.


The petition is denied.   The case is remanded to the trial court with directions to proceed in accordance with the opinions expressed hereinwith.


1.   Subsequent statutory references are to the Penal Code.

2.   Witness No. 1 referred to Wheaton and Young by their street names during the Grand Jury proceedings.

3.   Included in the murder book is a police report containing a statement of a neighbor who called the police during the party to complain about the noise.   The People have not revealed the identity of this third witness.   After the police left the party, the attention of Witness No. 3 was again attracted to the party when one of the individuals present said, “Man, put the strap down.”   Witness No. 3 saw a man holding a gun being held from behind by another man.   Witness No. 3 told police there was a struggle over the gun followed by two shots.   Thirty seconds later Witness No. 3 heard nine more shots and then five additional shots from a different gun.   Young asserts the testimony of this witness could be exculpatory in that his statement indicates an exchange of gun fire.

4.   A sealed transcript of the in camera hearing is before this court and has been reviewed personally by a member of this court's panel.  (§ 1054.7;  Cal.Rules of Court, rule 33.5(b).)

5.   Section 1054 provides in part:  “This chapter shall be interpreted to give effect to all of the following purposes:  [¶] ․ (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.”Section 1054.1 requires the prosecutor to disclose the names and addresses of all witnesses he or she intends to call at trial.   Section 1054.2 prohibits an attorney from disclosing or permitting “to be disclosed to a defendant the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1 unless specifically permitted to do so by the court after a hearing and a showing of good cause.”Section 1054.7 provides:  “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred․  ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.”

6.   We leave it to the sound discretion of the trial court to grant whatever reasonable continuance might be necessitated upon a proper showing by the defense.

KLEIN, Presiding Justice.

CROSKEY and KITCHING, JJ., concur.

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